David P. Curnow, Assistant U.S. Attorney, San Diego,
Cali-fornia, for the plaintiff-appellee.

_________________________________________________________________

8501

OPINION

THOMAS, Circuit Judge:

This appeal would seem to present a question from therealm of quantum physics: to what extent does existencedepend on observation? Or, in our terms, is venue proper
onlywhere an alien is seen and arrested for being
"found in" theUnited States in violation of 8 U.S.C. S 1326, or may he
beprosecuted in the district where he illegally entered
and tra-versed unseen? Applying the continuing offense doctrine,
weconclude that venue is proper in either district and
affirm theconviction. We remand for resentencing, however, becauseRuelas-Arreguin was improperly denied an additional one-level adjustment for acceptance of responsibility.

I

Ruelas-Arreguin is a native and citizen of Mexico who
ille-gally returned to the United States after having been
deported.Upon reentry, he was transported through Southern
Californiaundetected in the bed of a pickup truck traveling east
towardsYuma, Arizona. INS border patrol agent Stephen Johnson
wastraveling westbound on Interstate 8 from Yuma to El
Centro,California when he received a radio dispatch regarding awhite pickup truck with a red stripe and camper shell
headingeastbound on Interstate 8. Agent Johnson was
approximatelytwo miles within California when he received the radio
mes-sage. He sighted the pickup truck, crossed the median,
andbegan following the vehicle for five or six miles
eastbound onInterstate 8 from California into Arizona. At this
initial sight-ing, only the driver was visible.

After the vehicle stopped in the parking lot of a local
res-taurant in Yuma, Agent Johnson approached the vehicle toquestion the driver and, at that time, discovered
numerouspeople, including Ruelas-Arreguin, laying on the floor
of thetruck bed. After he had established their Mexican
citizenship,

8502

Agent Johnson arrested the occupants of the vehicle andarranged to have them transported to the Yuma border
patrolstation, where they were each interviewed by INS
officialsand processed through the IDENT system. When questionedat the Yuma station, Ruelas-Arreguin confirmed that he
hadbeen previously convicted for attempted murder. He alsosigned a sworn affidavit indicating that he was in the
UnitedStates illegally after having been deported and that he
hadused a false name.

Thereafter, Ruelas-Arreguin was indicted in the SouthernDistrict of California on one count of being a deported
alienfound in the United States in violation of 8 U.S.C.S
1326.Following the government's case-in-chief,
Ruelas-Arreguinpresented no case other than a motion for judgment of
acquit-tal under Fed. R. Crim. P. 29 ("Rule 29"). The
district courtdeemed the Rule 29 motion timely but did not entertain
ituntil after closing arguments and the reading of the
juryinstructions. In that motion, Ruelas-Arreguin argued
thatvenue was improper in the Southern District of
Californiabecause he was "found" for purposes of S 1326
in Arizona,not California.

The district court rejected the asserted grounds for
acquittalbut took the venue issue under submission. After the
juryreturned with a guilty verdict, the district court
denied thevenue portion of the Rule 29 motion without prejudice
andasked for additional briefing by sentencing.

At the sentencing hearing, the district court denied the
Rule29 motion in its entirety without further explanation.
The dis-trict court also rejected Ruelas-Arreguin's request for
an addi-tional one-level downward adjustment for acceptance ofresponsibility under U.S.S.G. S 3E1.1(b)(1). Instead,
the dis-trict court awarded only a two-level reduction under
U.S.S.G.S 3E1.1(a), observing that: "While Mr. Ruelas
certainly isdeserving of the minus 2 for acceptance, the additional
pointbasically being a convenience factor to the parties
involved,

8503

is not warranted and the court will not award the
additionalpoint." Ruelas-Arreguin was then sentenced to 63
monthsimprisonment, to be followed by 3 years of supervisedrelease.

The district court had jurisdiction under 18 U.S.C.S
3231,and we have jurisdiction over this timely appeal
pursuant to28 U.S.C. S 1291 and 18 U.S.C. S 3742. We review de novothe question whether venue was properly laid in the
SouthernDistrict of California, see United States v. Childs, 5
F.3d1328, 1331 (9th Cir. 1993), and we review the district
court'sdecision to withhold an additional one-level adjustment
underU.S.S.G. S 3E1.1(b) for clear error. See United States
v.Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir. 1997).

II

Initially, we must decide whether Ruelas-Arreguin pre-served his objection to venue when he moved for a
judgmentof acquittal on grounds of improper venue at the close
of thegovernment's case. Consistent with the uniform decisions
ofour sister circuits, we conclude that he did.

Although we have not expressly adopted such a rule, seeUnited States v. Jensen, 93 F.3d 667, 669 n.2 (9th Cir.
1996)("We express no view as to the proper disposition
of a motionfor acquittal for lack of venue, should one be made
after theclose of the government's case-in-chief."), we have
neverthe-less made room for it, see Gilbert v. United States, 359
F.2d285, 288 (9th Cir. 1966) (implying that venue objection
mayhave been timely if raised in motion for acquittal).
Thus, inline with the persuasive decisions of our sister
circuits, wehold that venue objections made at the close of the
govern-ment's case-in-chief are timely if the defect in venue
is notapparent on the face of the indictment.

In this case, the alleged defect in venue was not
apparenton the face of the indictment. The indictment alleged
thatRuelas-Arreguin was "found in" the United
States "within theSouthern District of California." On its face,
therefore, theindictment alleged proper venue because it alleged factswhich, if proven, would have sustained venue in the
SouthernDistrict of California. See United States v. Mendoza,
108 F.3d1155, 1156 (9th Cir. 1997) ("[O]nly the indictment
may beconsidered in pretrial motions to dismiss for lack of
venue,and [ ] the allegations must be taken as true.").
Thus, Ruelas-Arreguin preserved his objection to venue when his
counselmoved at the close of the government's case for a
judgmentof acquittal on the ground that venue was improper in
theSouthern District of California.1_________________________________________________________________1 In holding that Ruelas-Arreguin preserved his venue
objection, we donot suggest that an acquittal is the proper remedy for
improper venue. SeeUnited States v. Hernandez, 189 F.3d 785, 792 n.5 (9th
Cir. 1999) ("Wereject the contention by Hernandez that a judgment of
acquittal is theappropriate remedy in the case of improper
venue."). When venue hasbeen improperly laid in a district, the district court
should either transferthe case to the correct venue upon the defendant's
request, see Fed. R.Crim. P. 21(b), or, in the absence of such a request,
dismiss the indictmentwithout prejudice, see United States v. Kaytso , 868
F.2d 1020, 1021 (9thCir. 1989).

8505

III

Although the venue objection may have been timely, venuewas proper in the Southern District of California. The
Consti-tution requires that venue lie in the district where a
crime wascommitted. See U.S. Const. art. III, S 2, cl. 3; U.S.
Const.amend. VI. This constitutional command is repeated in
theFederal Rules of Criminal Procedure. See Fed. R. Crim.
P. 18.The burden of establishing proper venue by a
preponderanceof the evidence rests with the government. See United
Statesv. Angotti, 105 F.3d 539, 541 (9th Cir. 1997).

[1] To decide whether venue was proper in the SouthernDistrict of California, we "must initially identify
the conductconstituting the offense . . . and then discern the
location ofthe commission of the criminal acts." United States
v.Rodriguez-Moreno, 526 U.S. 275, 279 (1999). Under S
1326,a deported alien may be convicted for either entering,
attempt-ing to enter, or being "found in" the United
States. See 8U.S.C. S 1326(a)(2). They are three distinct offenses.
SeeUnited States v. Pacheco-Medina, _______ F.3d _______,
No. 99-50414, 2000 WL 622076, at *4 (9th Cir. May 16, 2000).
Thecrime of being "found in" the United States is
completedwhen the "alien is discovered and identified by the
immigra-tion authorities." United States v. Hernandez , 189
F.3d 785,791 (9th Cir. 1999), cert. denied, 120 S. Ct. 1441
(2000).However, the crime does not begin and end there.

[2] An "entry" into the United States is
required before aperson is "found in" the United States. See
Pacheco-Medina,2000 WL 622076, at *4. "Entry" into the United
States is"embedded in the `found in' offense." Id.
Thus, the crime ofbeing "found in" the United States commences
with the ille-gal entry, but is not completed until discovery. See
UnitedStates v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir.
2000).In that sense, we have held that it is a
"continuing offense,"United States v. Ramirez-Valencia, 202 F.3d 1106, 1110
(9thCir. 2000) (citing United States v. Guzman-Bruno , 27
F.3d

8506

420, 423 (9th Cir. 1994)), even though the crime does
notcrystalize until official discovery and identification.
To para-phrase T.S. Elliot, the crime's beginning is in its end,
and itsend in its beginning.

any offense against the
United States begun in one district and completed in
another, or committed in more than one district,
may be inquired of and prose- cuted in any district in
which such offense was begun, continued, or
completed.

18 U.S.C. S 3237(a).

[4] Here, Ruelas-Arreguin was undoubtedly
"found" in theDistrict of Arizona when he was identified and arrested
by theINS; however, because illegal entry is "embedded
" in the"found in" offense, the crime commenced in the
SouthernDistrict of California and continued until his
apprehension.Thus, under 18 U.S.C. S 3237(a), venue was proper in
eitherthe Southern District of California or the District of
Arizona.

Hernandez does not compel a contrary conclusion; indeed,it supports this construction. In Hernandez, 189 F.3d at
791,we held that the crime of being "found in" the
United Stateswas completed for venue purposes at the point of
discoveryby INS authorities. Therefore, post-crime transportation
of thedefendant by the government did not make venue proper inthe district where he was taken after arrest. See id.
This hold-ing is entirely consistent with the plain language of S
3237(a),which makes no provision for new proper venues to be cre-

8507

ated after completion of the crime and apprehension byauthorities.

Ruelas-Arreguin insists that United States v.
Ortiz-Villegas,49 F.3d 1435 (9th Cir. 1995), and United States v.
Ayala, 35F.3d 423 (9th Cir. 1994), dictate a different
conclusion, butthey do not. In those cases, we suggested that an alien
canavoid being "found in" the United States by
departing afterhis illegal re-entry. See Ayala, 35 F.3d at 425; Ortiz
Villegas,49 F.3d at 1437 n.2. That is undoubtedly true, given
that thecrime is not completed until discovery by the
authorities.However, prior undetected criminal forays do not vitiate
newviolations of S 1326. Nor does the fact that one may
avoid acrime by failing to complete it mean that the criminal
act wasnot commenced.

Ruelas-Arreguin also argues that 18 U.S.C. S 3237(a) istrumped by 8 U.S.C. S 1329, the venue statute for S 1326offenses, because S 1329 provides for prosecutions to be
insti-tuted "at any place in the United States at which
the violationmay occur" or where the defendant "may be
apprehended." 8U.S.C. S 1329. Venue lying "at any place . . . at
which theviolation may occur" is entirely consistent with
the idea of acontinuing offense. Thus, S 1329 does not conflict withS 3237(a).

Because a violation of 8 U.S.C. S 1326 for being
"found in"the United States without the Attorney General's
permissionis a continuing offense which commences with entry and
con-cludes with discovery, venue was proper in either the
South-ern District of California or the District of Arizona.
Thus, weaffirm Ruelas-Arreguin's conviction.

IV

[5] We remand for resentencing because the district
courterred when it withheld the additional one-level
adjustment foracceptance of responsibility under U.S.S.G. S
3E1.1(b)(1).

8508

Ruelas-Arreguin was entitled to the adjustment because
hemade a timely and complete confession at the time of hisarrest.

Section 3E1.1(a) of the Sentencing Guidelines provides
fora two-level reduction in a defendant's offense level if
he"clearly demonstrates acceptance of responsibility
for hisoffense." U.S.S.G. S 3E1.1(a). If a defendant
qualifies for thistwo-level adjustment, the burden is on the government todemonstrate that the defendant was not entitled to the
addi-tional one-level reduction under S 3E1.1(b). See United
Statesv. Colussi, 22 F.3d 218, 220 (9th Cir. 1994). Section
3E1.1(b),in pertinent part, provides for an additional one-level
adjust-ment if "the defendant has assisted authorities in
the investi-gation or prosecution of his own misconduct by . . .
timelyproviding complete information to the government
concerninghis own involvement in the offense." U.S.S.G.S
3E1.1(b)(1)."The key inquiry for S 3E1.1(b) is whether the
confession wascomplete and timely." United States v. Guadalupe
Blanco-Gallegos, 188 F.3d 1072, 1077 (9th Cir. 1999) (citing
UnitedStates v. Eyler, 67 F.3d 1386, 1391 (9th Cir. 1995), andUnited States v. Stoops, 25 F.3d 820, 823 (9th Cir.
1994)).

Here, Ruelas-Arreguin was entitled to the additional
adjust-ment because, during questioning at the Yuma border
patrolstation, he made a timely and complete confession: he
con-firmed his prior criminal record and admitted by
affidavit thathe was in the United States illegally, that he had beendeported previously, and that he had used a false name.Because his timely post-arrest statements admitted
"all of theelements of the charged crime," the fact that those
statementswere "not used at trial" is irrelevant, and
the additional one-point reduction under S 3E1.1(b)(1) is mandatory. Id.;
seealso United States v. Chee, 110 F.3d 1489, 1494 (9th
Cir.1997) (affirming denial of adjustment where
"defendant didnot timely provide complete information" concerning
hiscrimes). Thus, we reverse the denial of the
additional-onelevel adjustment under U.S.S.G. S 3E1.1(b)(1) and remand
for

8509

re-sentencing with instructions to award the additional
one-level adjustment.

V

In sum, Ruelas-Arreguin was properly prosecuted in theSouthern District of California. However, he was
entitled toan additional one-level adjustment under U.S.S.G.S 3E1.1(b)(1). Accordingly, we affirm his conviction butvacate his sentence and remand for re-sentencing
consistentwith this opinion.